1. Service Description: AccessLine agrees to provide, and Customer agrees to purchase, the "Service", defined to include direct-dialed Voice over IP ("VoIP") calling and certain calling and call management features or advanced features, including additional features or advanced features which may be offered at additional costs, and which AccessLine, in its sole discretion, may add, modify, or delete from time to time. In order to utilize SmartVoice Service functionality, AccessLine will install and configure a VoIP gateway. The gateway interconnects with Customer's existing PBX phone system and AccessLine's data connection to Customer's premise.
   
   
2. Use of Service: Customer agrees not to use the Services for any unlawful or abusive purpose or in any way that interferes with AccessLine's ability to provide service to its customers, or damages its property. Customer shall not resell the Services, or any part thereof, without first obtaining any required regulatory approvals and providing AccessLine with a copy of such approvals (e.g. Resale Certificates). If Customer becomes aware that the Services are being fraudulently used, Customer must immediately notify AccessLine. AccessLine has the right to interrupt or restrict access to the Services, without prior notice to Customer, if AccessLine suspects fraudulent or abusive activity, or activity that interferes with AccessLine's ability to provide Service to its customers. Customer agrees to cooperate with AccessLine in any fraud investigation and to use any reasonable fraud prevention measures AccessLine prescribes. Customer agrees to protect password and account information for any administrative access provided to the Services. Upon termination of the Agreement, Customer's right to use the Services immediately ceases.
   
   
3. Charges: Customer is responsible for paying all charges to its account for Services ordered via the SMARTVOICE SERVICE AGREEMENT & ORDER FORM, in accordance with the Retail Pricing Schedule above and the Minimum Commitment as defined below. The rates shown above are exclusive of applicable taxes and governmental surcharges, all of which will be added to Customer's bill. AccessLine reserves the right to pass through any changes to surcharges, taxes or other modifications to the prices charged hereunder or to AccessLine's tariffs that are caused or triggered by regulatory activity. Customer acknowledges it is responsible for protecting against fraudulent access to the Services, in accordance with Section 2 above, and shall also be liable for all charges incurred by any other person's use of Customer's Services, whether such use is authorized by Customer or not, except to the extent such use is caused by the intentional misconduct or gross negligence of AccessLine. Every installed gateway must be provisioned with a DID for the purposes of E911/911 call back which will be provided at no charge. Customer is prohibited from intermingling traffic or for utilizing this service for anything other than providing SmartVoice Service to its end users. AccessLine reserves the right to terminate the Agreement and/or the suspend the Services for cause immediately upon written notice to Customer if AccessLine determines, in its sole discretion, that Customer is using or plans to use the Services in a manner inconsistent with this provision and resulting in abnormal volumes and destinations of call usage. AccessLine may audit Customer's traffic to ensure that Customer is complying with this provision. Toll-Free numbers are automatically provided with access available from Alaska, Hawaii, Canada, Puerto Rico and the US Virgin Islands. All usage is charged in six (6) second increments with an eighteen (18) second minimum, except for usage included within the base charges, Conferencing, international usage and the Other Traffic Premium, which are billed in one-minute increments with a one-minute minimum. The Payphone Surcharge is applied to calls to a Toll-Free number originating from a payphone device. The hourly charge for Professional Services is $250.00 per hour. Professional Services will only be performed and charged upon prior written approval by Customer. Service Upgrades; $25 one time charge for adding a line after initial install, $200 one time charge for upgrading to a larger gateway after initial install, if site visit is required. AccessLine will install all applicable components of Service, including a data circuit, broadband modem and VoIP gateway ("CPE"). AccessLine will connect the CPE to Customer's existing phone wiring block. Any additional wiring is the responsibility of the Customer (including wiring to individual offices or connecting phones to new or existing wiring). AccessLine will install additional wiring at a rate of $99 per hour if requested to do so by Customer in writing.
   
   
4. Billing and Payments: Activation and monthly recurring charges are billed in advance. Usage and long distance charges are billed in arrears. Recurring charges commence accruing at the time the Services are provisioned by AccessLine. Payment of all charges is due thirty days from the date of the invoice (the "Due Date"). If Customer fails to pay for all charges by either: i) more than thirty (30) days past the Due Date on one (1) occasion, or ii) more than fifteen (15) days past the Due Date on two (2) occasions, within any twelve (12) month period, then Customer will be, upon receipt of written request from AccessLine, required to pay a billing deposit ("Billing Deposit"), of an amount equal to twice the average monthly bill for the preceding three (3) month period. If Customer fails to pay the Billing Deposit within ten (10) days of receipt of the request to do so, then AccessLine may, in its sole discretion, suspend all Services provided to Customer and maintain the Services in a suspended status until such time that the Customer has paid all amounts then due including the Billing Deposit. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, AccessLine may make reasonable pro-rations to recurring charges. No terms of any purchase order, sale order, invoice or similar document issued by either party shall alter or modify the terms or conditions of this Agreement. AccessLine will provide electronic billing detail records to Customer upon request, in form and content that AccessLine customarily makes such records available. Billing detail records provided to Customer are on an information basis only and in no way alter or modify the monthly invoice that is sent to Customer, nor the Customer's obligation to pay the monthly invoice. In the event Customer disputes any charges on an AccessLine Invoice ("Billing Disputes"), Customer shall notify AccessLine in writing, via submission of the Billing Dispute Notification Form ("BDF" - available from AccessLine upon request), of such dispute within thirty (30) days of the invoice date, stating the invoice date, line item of the invoice, the disputed amount, the trouble ticket number (if applicable) and a detailed explanation of the dispute with supporting documentation. All invoices over thirty (30) days old shall be deemed accurate and undisputed by Customer and therefore shall not be eligible for dispute. Any dispute raised by the Customer outside of the process defined in this section will be deemed null and void and any such amounts identified will be deemed undisputed by Customer and therefore shall not be eligible for dispute. Upon submission AccessLine will review a BDF for completeness and, if deemed complete and in compliance, AccessLine will issue a tracking number to Customer for future reference and as its acceptance of the submission of the BDF. If AccessLine determines, in its sole discretion, that the BDF is incomplete or not in compliance with this section, then AccessLine will inform Customer of the identified deficiency and request re-submission. AccessLine will review submitted BDFs within ten (10) business days of acceptance of the BDF, and using its reasonable discretion, determine whether to credit, partially credit, or refuse such disputed items, which determination shall be final subject to remedy as set forth in Section 15.1 below below. Customer shall pay all charges not disputed in this manner within the thirty (30) day period specified above. If the dispute is resolved in AccessLine's favor, Customer shall pay AccessLine, within ten (10) days after resolution of the dispute, the entire unpaid disputed amount.
   
   
5. Term; Minimum Commitment; Cancellation Fee: The Term of this Agreement shall commence as of the Effective Date first written above and shall continue for the period indicated in the Order Form above (the "Initial Term") and will thereafter automatically renew on an annual basis unless cancelled by either party, in writing, ninety (90) days prior to the expiration of any Term. The quantity of Services as indicated within the Order Form by the number of locations identified and the quantity of ports or lines ordered at each location constitutes the minimum commitment ("Minimum Commitment") by Customer for the period of the Initial Term and Customer hereby agrees to pay the charges associated with Minimum Commitment Services for the period of the Initial Term. If Customer terminates or cancels this Agreement prior to the end of a Term for any reason other than a default by AccessLine, or if AccessLine terminates this Agreement due to a default by Customer, Customer agrees that AccessLine's damages for such premature termination of this Agreement will be difficult or impossible to determine and Customer agrees to pay AccessLine, in addition to any amounts outstanding as of the date of termination or cancellation, and as a reasonable estimate of AccessLine's damages and not as a penalty, a Cancellation Fee equal to the monthly recurring charges for the Minimum Commitment multiplied by the number of months left in the Term.
   
   
6. Default; Termination: If Customer fails to pay any amount owed to AccessLine by its Due Date, or if Customer breaches any representation or fails to perform any of the promises made in this Agreement, or if Customer is subject to any proceeding under the Bankruptcy Act or similar laws, Customer will be in default and AccessLine may, in its sole discretion and, with or without prior notice, suspend or restrict Service and/or terminate this Agreement subject to the provisions of Section 5, in addition to all other remedies available to it. Upon termination, Customer is responsible for paying all amounts and charges owing under this Agreement, including any applicable Cancellation Fee and all costs of collection, including attorneys' fees.
   
   
7. Title to Assets: AccessLine retains all rights and title to that deployed equipment. AccessLine shall be permitted to file a UCC-1 statement indicating its ownership of same. Upon Termination of the Agreement for any reason or suspension or cancellation of delivery of the Services to Customer, Customer agrees to return equipment to AccessLine (at AccessLine's cost), in its original condition (excepting normal ware and tear) within ten (10) days of Customer's receipt of a written request for the return of the equipment from AccessLine, or AccessLine may during regular business hours remove such equipment from Customer's location. If Customer fails to return the equipment within thirty (30) days of receipt of the request or refuses AccessLine access to such equipment, then AccessLine will add the full original purchase cost of that equipment to Customer's next invoice.
   
   
8. Assignment: Neither party may assign or otherwise transfer its rights or delegate its duties hereunder without the prior written consent of the other; provided however, either party may assign its rights and obligations in connection with a merger or sale of all or substantially all of the assets of such party.
   
   
9. Disclaimer of Warranties and Limitation of Liability: ACCESSLINE AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR THE ACCESSLINE NETWORK (INCLUDING 911), AND HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL ACCESSLINE OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, END-USERS OF CUSTOMER'S SERVICE, FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. Customer shall indemnify and defend AccessLine from and against all loss (or threatened loss), liability, damage, and expense, including attorney's fees, caused by third party claims arising from or in connection with any of the following: (i) death or bodily injury of any agents, employees, customers, business invitees, business visitors or other persons caused by the tortious conduct of Customer; (ii) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of Customer; (iii) any claim, demand, charge, cause of action, or proceeding asserted against AccessLine but resulting from an act or omission of Customer in its capacity as an employer of a person; or (iv) any claim for damages resulting from the illegal or fraudulent use of Services by Customer. Customer will indemnify and defend AccessLine from and against all loss, liability, damage and expense, including attorney's fees, caused by any third party claims arising from information, data, or messages transmitted over the AccessLine network by Customer, or Customer's own customers or agents, including, but not limited to: (a) claims for libel, slander, invasion of privacy, infringement of copy-right, and invasion or alteration of private records or data; (b) claims for infringement of patents arising from the use of hardware and software not provided by AccessLine in connection with the Services; and (c) claims based on transmission and uploading of information that contains viruses, worms, or other destructive media or other unlawful content. Customer will indemnify and defend AccessLine from and against all loss, liability, damage and expense, including attorney's fees arising from third party claims brought against AccessLine alleging that Services or equipment, software or other materials provided by AccessLine or its subcontractors constitutes an infringement or misappropriation of any copyright, trade-secret, patent right, or other proprietary right of a third party, to the extent that such claim is based on or results from: (a) the combination, operation or use of the Services by Customer with any equipment, software or data that is not provided, approved or consented to by AccessLine under the Agreement; or (b) use of the Services in a manner prohibited under the Agreement or any Attachment to the Agreement if such infringement would have been avoided by the use of the Service in accordance with the Agreement or any Attachment. The party seeking indemnification hereunder shall promptly notify the other party in writing of any claim; provided, however, that no failure to notify the indemnifying party shall relieve the indemnifying party of its obligations under this Agreement except to the extent that the indemnifying party can demonstrate damages attributable to such failure. The indemnifying party shall have the right and authority to control and direct the investigation, defense and settlement of such claim and each party agrees to provide the other party with reasonable information and assistance for the claim's defense and settlement, provided that (i) the indemnifying party will obtain the prior written approval of the indemnitee before entering into any settlement of such claims (other than settlements that involve solely the payment of money) or ceasing to defend the claim and (ii) the indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. To be indemnified under this Section, the party seeking indemnification must not knowingly by any act (including any admission or acknowledgement) materially impair or compromise a claim's defense. AccessLine is not responsible for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information or physical damage to Customer's transmission facilities or Customer premise equipment, AccessLine is not responsible for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information or physical damage to Customer's transmission facilities or Customer premise equipment, unless such access, alteration, theft, destruction or damage is directly caused by AccessLine's acts or omissions.
   
   
10. Emergencies: ACCESSLINE DOES NOT PROVIDE A "911" OR E911 OR SIMILAR EMERGENCY CALL ROUTING WITH CERTAIN ENHANCED NUMBER SERVICES. CUSTOMER SHALL HAVE THE RESPONSIBILITY TO ENSURE THAT ALL EMERGENCY SERVICE CALLS ARE ROUTED APPROPRIATELY VIA EITHER I) THE ACCESSLINE SERVICES THAT DO SUPPORT E911 CALL ROUTING, OR II) OTHER MEANS. FUTHER, CUSTOMER AGREES TO INDEMNIFY ACCESSLINE AGAINST ALL LIABILITY ASSOCIATED WITH ROUTING OF 911 CALLS VIA EXECUTION OF EXHIBIT E OF THIS AGREEMENT. ACCESSLINE IS NOT RESPONSIBLE FOR ANY INVASION OF THE RIGHT OF PRIVACY OF ANY PERSON OR PERSONS, CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY DIALING 911, INCLUDING BUT NOT LIMITED TO THE IDENTIFICATION OF THE PHONE NUMBER, ADDRESS OR NAME ASSOCIATED WITH THE TELEPHONE USED BY THE PARTY ACCESSING THE 911 SERVICE.
    
    
11. Notices: Any notice or other communication herein required or permitted to be given shall be in writing and may be personally served or sent by telephone facsimile ("telecopy"), a recognized overnight courier or United States mail, and shall be deemed to have been received when (a) delivered in person or received by telecopy, (b) one business day after delivery to the office of such overnight courier service, or (c) three business days after depositing the notice in the United States mail with postage prepaid and properly addressed to the other party, at the following respective addresses: To AccessLine: AccessLine Communications; Attn: Mary Shea; 11201 SE 8th St., Bellevue, WA 98004; Tel: 206-621-3500; Fax: 425-646-8182 To Customer: as provided in the Order Form above.
    
    
12. Service Level and Service Level Credits: Customer must contact AccessLine's Customer Service organization to report issues related to Service performance. In order for AccessLine to investigate any reported issues, Customer agrees to provide AccessLine with supporting information as reasonably requested by AccessLine as applicable to the Services delivered under this Agreement. In the event of any damages arising out of AccessLine's furnishing or failure to furnish Services under this Agreement, Customer's sole remedies are contained in (a) the AccessLine SmartVoice Service Level Agreement, available from AccessLine upon request ("SLA"), (b) the chronic outage provision (if any) set forth in the SLA applicable to the affected Service, and (c) Section 9 above. In the event AccessLine does not achieve a particular Service Level in a particular month, AccessLine will issue a credit to Customer as set forth in the applicable SLA, only upon Customer's request. AccessLine's maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Customer must contact AccessLine's Customer Service organization to report the service issue and deliver a written request (with sufficient detail necessary to identify the affected Service) within thirty (30) days of the end of the month for which a credit is requested. If Customer fails to follow the procedures set forth herein, Customer waives their rights to a Service Level Credit for the impacted Service. In no event shall the total amount of credits issued to Customer per month exceed the non-recurring charges and monthly recurring charges invoiced to Customer for the affected Service for that month.
    
    
13. E911/911 Calling: SmartVoice supports VoIP-based E911 via the integration of a 3rd party solution by Intrado Corporation of Colorado. E911/911 Service Limitations: Customer hereby acknowledges the risks associated with VoIP-based E911/911 services, and agrees to comply with the following:
    • (a) Customer will provide accurate emergency address information for each gateway providing local service (whether inbound or outbound or both).
    • (b) Further, Customer will ensure that the Critical Customer Notification ("CCN") is posted in plain view for all potential users of phone service within Customer's physical locations, and is also available on notice boards, intranet web sites, or other means to ensure that Customer's employees, third party contractors, guests, occasional staff or any other person who may use Customer's phone service is able to refer to the CCN so that they can understand the limitations of the VoIP-based E911/911 service provided by AccessLine.
    • (c) Customer will translate the CCN to other languages as necessary in order to achieve the broadest possible understanding of the CCN.
    • (d) Customer acknowledges receipt of and will distribute diligently all Warning Labels provided by AccessLine to the end users and physical locations of phones that have the ability to make E911/911 phone calls.
    • (e) Customer acknowledges and hereby agrees to inform all end users of Enhanced Number Service, of the fact that 911/E911 Services are not available via the outbound calling functions of the Enhanced Number Services (Voicemail Number, Follow Me Number with Voicemail, Fax Number, Automated Attendant Number, Virtual Calling Card and Conferencing Number).
    • (f) Customer hereby acknowledges that AccessLine recommends that a Plain Old Telephone Service ("POTS") line be available as a back-up for 911 calling in each gateway location.
    • (g) Customer hereby acknowledges that AccessLine recommends periodic 911/E911 audits to ensure that emergency addresses and phone numbers are correct.
    • (h) Customer hereby acknowledges that it understands that the E911/911 service is available only within certain geographic areas within the US and is not available outside the US. AccessLine will provide Customer with an up-to-date list of the geographic areas within the US that E911/911 service is available as additional service areas become available.
    • Customer hereby acknowledges and agrees that its failure to comply with this clause 13 would constitute a material breach of this Agreement.
    
    
    
14. Directory Listing: Customer may request a Directory Listing for any Local Numbers they have purchased from AccessLine and AccessLine has the capability to provide Directory Listing Services, however, given that AccessLine utilizes a third party vendor for Directory Listing, there is no guarantee that AccessLine will be able to list a specific number with the third party provider, also, there is no guarantee as to the timeframe under which Directory Listing can be completed. AccessLine does NOT support an option where the address is not published. Further, where Subscribers choose not to purchase or to discontinue AccessLine's Directory Listing service, AccessLine provides no assurance that any existing information in the various directory listing databases will be removed or revised. In the event that a Directory Listing is completed successfully, the end user will be provided with:
    • (a) A listing for each number in the electronic database and white pages book managed by the Local Exchange Carrier ("LEC") in whose area the local numbers originate.
    • (b) Via the above, most Directory Assistance providers will be able to lookup the number when they receive an inquiry.
    • (c) Yellow page and other electronic database providers then may contract with the LEC to purchase and list in their books, databases, etc. as an independent action from the Directory Listing Services provided by AccessLine. AccessLine will not be responsible for any misprints, errors or omissions but will work diligently to correct any errors in the databases of AccessLine's partner carriers and their LEC providers that are identified by the Customer. Further, CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD ACCESSLINE AND/OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY OF ACCESSLINE'S CARRIER VENDORS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS FOR EXPENSES OR DAMAGES OF ANY KIND (INCLUDING ATTORNEYS' FEES) ARISING FROM A MISPRINT OF CUSTOMER'S DIRECTORY INFORMATION.
    
    
    
15. Miscellaneous Provisions:
    • 15.1 Laws, Rules, and Regulations. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, without regard to the principles of conflict of laws. The Parties agree that the exclusive venue of any action related to this Agreement shall be the state or federal courts located in Seattle, Washington, and the parties hereby consent to the jurisdiction and venue of such courts. This Agreement is subject to all laws, rules, regulations, and ordinances relative to, among other things, the provision of enhanced telecommunications and long distance services, including, without limitation, the Communications Act of 1934 and the Telecommunications Act of 1996, as amended, and all rules and regulations promulgated there under.
    • 15.2 Force Majeure. Neither party will be liable for any nonperformance under this Agreement due to causes beyond its reasonable control that could not have been reasonably anticipated by the non-performing party as of the Effective Date and that cannot be reasonably avoided or overcome; provided that the non-performing party gives the other prompt written notice of such cause, and in any event within fifteen (15) calendar days of discovery thereof.
    • 15.3 Independent Parties. Notwithstanding anything to the contrary herein, it is acknowledged, confirmed, and agreed that Customer shall be, and shall be deemed to be, an independent entity for all intents and purposes, including, without limitation, federal taxation. Customer shall pay all expenses in connection with performing its obligations hereunder and shall not incur any indebtedness on behalf of AccessLine in connection with such expenses. Neither party shall have or hold itself out as having any right, authority or agency to act on behalf of the other party in any capacity or in any manner, except as may be specifically authorized in this Agreement.
    • 15.4 Attorneys' Fees. If any action shall be brought on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of this Agreement, the most prevailing party shall be entitled to recover from the other, as part of the prevailing party's costs, reasonable attorneys' fee.
    • 15.5 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
    • 15.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument.
    • 15.7 Fair Interpretation, Headings. This Agreement has been negotiated by the Parties and their respective counsel. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of the Agreement or otherwise. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
    • 15.8 Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understanding or agreements, written or oral, between the parties regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing, in a format specified by AccessLine, and signed by a duly authorized representative of Customer. No delay or failure by either party in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. Failure by either party to enforce any right under this Agreement will not be deemed a waiver of future enforcement of that or any other right.
    • 15.9 Binding Agreement. This Agreement is made for the benefit of AccessLine and Customer and their respective affiliates, if any, and not for the benefit of any third parties. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, and their permitted successors and assigns.
    • 15.10 Remedies. The rights and remedies of the Parties hereunder shall not be mutually exclusive, i.e., the exercise of one (1) or more of the provisions hereof shall not preclude the exercise of any other provision hereof. The Parties acknowledge, confirm and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be enforceable by specific performance, injunction or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or statute or otherwise for a breach or threatened breach of any provision hereof, it being the intent of this provision to clarify that the respective rights and obligations of the parties shall be enforceable in equity as well as at law or otherwise.
    • 15.11 Survival. Sections 7, 9, 10, 11, 13, 14 and 15 of this Agreement will survive Termination or expiration of this Agreement and remain in full force and effect. These terms will apply to either party's successors and assigns, and any other provisions of this Agreement that are necessary for interpretation of such surviving terms shall continue to apply to all such surviving terms.

1. Term. The term of this Agreement begins on the date we activate Service for you or your Number. IF YOU SELECT A SERVICE PLAN WHICH REQUIRES A FIXED TERM OF MORE THAN ONE MONTH (SUCH AS A ONE-YEAR PLAN), YOU AGREE TO PURCHASE SERVICE ON THAT PLAN FOR THE FULL TERM. After the term expires, this Agreement will continue from month to month until terminated by either party upon 30 days notice.
   
   
2. Use of Service and Number. You agree not to use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide Service to our customers, or damages our property. You agree not to use the Service for any illegal activities. Resale of your Number, the Service, or any part thereof, is prohibited without prior contractual arrangements with us and any required regulatory approvals. As set forth below, you have no ownership rights to the Number; we may change your Number by giving you notice, although we will take all reasonable steps not to do so. If your Service is fraudulently used, you must immediately notify us. We have the right to interrupt or restrict Service to you, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe. You should change your Personal Identification Number (PIN) once each month. Upon termination of the Service, Customer's right to use the Service immediately ceases. Customer shall have no right and AccessLine will have no obligation thereafter to forward any unread or unsent messages to Customer or any third party.
   
   
3. Charges. You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into this Agreement. You are responsible for paying all charges to your account for Service, including but not limited to, long distance and directory assistance charges and for all taxes and surcharges imposed on you or us as a result of your use of the Service. Long distance usage on each call is billed in six-second increments after a 30 second minimum, or as otherwise stated by your plan. 800/888/877 Numbers are charged on the in-bound call only, except that fax forwarding and international calls are charged separately when available.
   
   
4. Billing and Payment. Any applicable initiation charges and monthly recurring are billed in advance. Usage charges are billed in arrears. Payment of all charges is due thirty days from the date of the invoice. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and prorations. If you have authorized payment by credit card, no additional notice or consent will be required for billings to that credit card or account. You will advise us of any changes to your credit card account, such as account number or expiration date changes. Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per annum or (b) the highest amount allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked "Paid in Full") shall not waive any of our rights to collect the full amount due under this Agreement. We may assess an additional fee of fifty dollars ($50) for any check returned for nonpayment. Notice of any disputes must be in writing and received by us at our address within thirty days after the invoice date or you will waive any objection.
   
   
5. Default/Termination. If you fail to pay any amount owed to us within 5 days after the due date, or if you have in the past failed to pay amounts due us or an affiliate of ours, or if you breach any representation to us or fail to perform any of the promises you have made in this Agreement, or if you are subject to any proceeding under the Bankruptcy Act or similar laws, you will be in default and we may, in our sole discretion and with or without prior notice, suspend or restrict Service and/or terminate this Agreement, in addition to all other remedies available to us. We may require reactivation charges to renew Service after termination or suspension. Upon termination, you are responsible for paying all amounts and charges owing under this Agreement, including any applicable cancellation fee. You agree to pay all costs including attorneys fees, collection costs and court costs we incur in enforcing this Agreement through any appeal.
   
   
6. Deposits/Credit Reports. You represent and warrant that all information you have provided to us in connection with your registration for Service is true, accurate, current and complete. You authorize us to ask consumer reporting agencies or trade references to furnish us with employment and credit information, and you consent to our rechecking and reporting personal and/or business payment and credit history. We may require a deposit, or increase an existing deposit, to establish or maintain Service which will be held as a partial guarantee of payment and cannot be used by you to pay your bill or delay payment. Unless otherwise required by law, deposits may be mixed with other funds and will not earn interest. If you default or this Agreement is terminated, we may, without notice to you, apply any deposit towards payment of charges due.
   
   
7. Cancellation Fees. IF YOU SELECT A FIXED TERM, AND THIS AGREEMENT OR YOUR SERVICE IS TERMINATED BEFORE THE END OF THAT FIXED TERM BY YOU OR BY US FOLLOWING YOUR DEFAULT (INCLUDING A FAILURE BY YOU TO MAKE PAYMENT OF AMOUNTS YOU OWE US), YOU WILL BE IN MATERIAL BREACH OF THIS AGREEMENT. YOU AGREE OUR DAMAGES WILL BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND YOU AGREE TO PAY US, AS A REASONABLE ESTIMATE OF OUR DAMAGES AND IN ADDITION TO ALL OTHER AMOUNTS OWING, A CANCELLATION FEE EQUAL TO THE MONTHLY FEE TIMES THE NUMBER OF MONTHS REMAINING IN THE FIXED TERM.
   
   AccessLine will allow cancellation of any non fixed-term Service plan purchased online within two business days of purchase for full credit of purchase price provided that:
   
   a. You have not configured Service personal options; and
   b. You have not used any Services and no calls have been made to or from your Number, if applicable,; and
   c. The credit card holder makes such cancellation by means of a telephone call to (206) 621-3500 during regular Customer Service hours (Cancellations sent by US Mail, fax or electronic mail are invalid).
   
   Cancellations made after two business days and less than 30 calendar days from date and time of online purchase, regardless of your usage or personal configuration, will be charged for one full month of Service according to the Service plan selected, plus any setup fees, and charges for toll calls made and toll-free calls received.
   
   
8. Account Changes.You may change Service features or Service plan by notifying us and paying our standard charges, including any applicable early cancellation fee, and by complying with any other requirements we include to accomplish the change. Changes will take effect by your next billing cycle. If you transfer to a plan having a term which is shorter than your previous plan, you may remain obligated for the term of the previous plan. If we allow you to suspend your account for a temporary period, we may extend the term of your Agreement by the length of the temporary suspension. Any person able to provide your name, address, social security number, and your account number or Number is authorized by you to receive information about your account, and to make changes to the account.
   
   
9. Ownership of Number.You understand and agree that you are not the owner of any telephone number assigned to you by AccessLine. Ownership of any such phone number is vested solely in AccessLine (who will assign or re-assign such numbers to you for your use during the term of this Agreement). You understand and agree that (a) AccessLine may from time to time need to change the number assigned to you (due to an area code split or for any other reason outside of AccessLine's control) and (b) following the termination of your AccessLine account for any reason you will no longer have access to such number. In either case, such phone number may be re-assigned immediately to another customer and you agree that AccessLine will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if AccessLine has been advised of the possibility of damages. In the event that the Number assigned to you by AccessLine is a Toll-Free number and the Service associated with that number being terminated, then AccessLine will, upon your written request, allow you to move that Toll-Free number from AccessLine to an alternate Toll-Free carrier (and will provide the necessary documentation to support this process), provided that (a) the termination of Service is not due to a default, and (b) all fees and charges for the Services, whether or not then due,r have been paid in full.
   
   In the event that you have moved a Number, either local or Toll-Free, from a previous service provider or carrier to AccessLine, then you will retain ownership of that Number. In the event the Service associated with that number being terminated, AccessLine will, upon your written request, allow you to move that local or Toll-Free number from AccessLine to an alternate carrier ( and will provide the necessary documentation to support this process), only if (a) the termination of the Service is not due to a default, and (b) all fees and charges for the Services, whether or not then due, have been paid in full.
   
   
10. Modification; Assignment. We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of AccessLine), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at www.accessline.com. If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change and you will not be charged an early cancellation fee. No hand-marked changes on this Agreement or any amendment will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original. We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of AccessLine to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
    
    
11. NO WARRANTIES. THE SERVICES ARE PROVIDED "AS IS." WE MAKE NO WARRANTIES REGARDING THE SERVICE WHATSOEVER AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by AccessLine, your sole remedy for such reliance is against the third person making such representation or warranty.
    
    
12. LIMITATION OF LIABILITY. WE SHALL NOT BE LIABLE IF OUR NONPERFORMANCE OR A FAILURE OF THE SERVICE IS CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION, TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. WE ASSUME NO LIABILITY FOR SERVICE OUTAGES OR FOR FAILURE TO STORE, DELIVER OR TIMELY DELIVER ANY INFORMATION, MESSAGES OR CONTENT. IN NO EVENT SHALL OUR LIABILITY TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY. WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECULATIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS, EVEN IF ACCESSLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION OF LIABILTY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SERVICE, RELIANCE ON THE SERVICE, INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICE. WE SHALL NOT BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICE, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICE.

    YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ACCESSLINE COMMUNICATIONS CORPORATION AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM (A) YOUR USE OF THE SERVICE, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF ACCESSLINE OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES.

    THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
    
    

13. EMERGENCIES. IN THE EVENT OF AN EMERGENCY WHILE USING YOUR SERVICE, HANG UP AND DIAL "911."
    
    
14. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder, other than the payment of moneys, caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war or government requirements.
    
    
15. Privacy. AccessLine's Privacy Policy is set forth on the AccessLine Web Site (www.accessline.com). In addition, you authorize our monitoring and recording of your calls to us concerning your account or the Service and you consent to our contacting you from time to time by means of (a) automatic dialing equipment, or (b) your AccessLine voicemail box.
    
    
16. Notices. Notices to you shall be effective when sent by email to the email address provided to us or, at our option, 3 days following the date deposited in the US Mail addressed to your address as kept in our files. You are responsible for notifying us of any changes in your address. Written notice to us shall be effective when directed to our Customer Care Department and received at our address. Your notice must specify your name and Number. Oral notices shall be deemed effective on the date reflected in our records.
    
    
17. General Information. THE LAWS OF THE STATE OF WASHINGTON, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF THE ACCESSLINE SERVICES, AND YOU EXPRESSLY AGREE THAT THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF THE ACCESSLINE SERVICES RESIDES IN THE STATE AND FEDERAL COURTS OF THE STATE OF WASHINGTON, U.S.A. AND YOU CONSENT TO PERSONAL JURISDICTION IN SUCH COURTS WITH RESPECT TO ALL SUCH CLAIMS OR DISPUTES. In the event that any action is filed to interpret or enforce this Agreement, the most prevailing party shall be entitled to recover its costs, including expert witness fees and reasonable attorneys' fees, at trial and through appeal. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect. You hereby consent to AccessLine publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of AccessLine's promotional and marketing activities from time to time. This Agreement constitutes the entire agreement between AccessLine and you with respect to your use of AccessLine services and your AccessLine account, and it supercedes all prior or contemporaneous communications and proposal, whether oral or written, between AccessLine and you with respect thereto. The failure of AccessLine to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
    
    
18. Copyright Infringement. AccessLine respects the intellectual property rights of others and asks and expects our users to do the same. If you believe your work has been copied in any way in connection with our Services that constitutes copyright infringement, please provide our copyright agent with the following information:
    1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
    2. a description of the copyrighted work that you claim has been infringed;
    3. a description of where the material that you claim is infringing is located on our property, servers or site, or otherwise sufficient to enable us to locate such material;
    4. your address, telephone number, and e-mail address;
    5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
    6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner.

    The foregoing notice should be directed to:

    Attn: General Counsel
    c/o AccessLine Communications Corporation
    11201 SE 8th Street, Suite 200
    Bellevue, WA 98004
    Phone/Fax: 206-621-3500
    e-mail: copyright@accessline.com

In accordance with the Digital Millennium Copyright Act, it is the policy of AccessLine to terminate, in appropriate circumstances, the Service of any user who is a repeat infringer. However, AccessLine reserves the right to terminate or suspend the Service of a user for only a single infringement, and may or may not, in AccessLine's sole discretion, attempt to contact such user prior to such termination or suspension.

Last updated May 25, 2004.